Opinion
CIVIL ACTION No. 03-2129-KHV
December 8, 2003
MEMORANDUM AND ORDER
Norman Richardson, pro se, brings suit against Fowler Envelope Company, LLC ("Fowler Envelope"), Daye Perkins, Jeff Neusel and Dale Sharp alleging that defendants violated the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. Plaintiff also brings state law claims of fraud, misrepresentation and misconduct. This matter comes before the Court on Defendants' Motion To Dismiss (Doc. #28) filed November 3, 2003, and plaintiffs Notice of Appeal (Doc. #70) and Motion To Transfer Counts to State Court (Doc. #71), both filed November 20, 2003. For reasons set forth below, the Court finds that defendants' motion should be sustained and that plaintiff's motions should be overruled.
Defendants ask the Court to dismiss plaintiffs entire case as a sanction for his failure to cooperate in discovery and to comply with Court orders. Plaintiff has not responded to defendants' motion to dismiss. Pursuant to D. Kan. Rule 7.4, if a respondent fails to file a timely response, "the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice."
Plaintiff filed suit on March 10, 2003. On June 20, 2003, defendants served plaintiff with interrogatories and requests for production. Plaintiffs responses were due on July 21, 2003. Plaintiff did not meet this deadline. On July 25 and August 7, 2003, defense counsel wrote plaintiff letters requesting discovery responses. Plaintiff did not respond to either letter. On August 14, 2003, defendants filed a motion to compel. On September 4, 2003, the magistrate granted defendants' motion and ordered plaintiff to comply with defendants' discovery requests on or before September 22, 2003. See Order. Doc. #48. Plaintiff did not comply. On October 2, 2003, defense counsel wrote plaintiff a letter urging him to bring his discovery responses to his deposition on October 7, 2003. He did not do so. On October 10, 2003, defendants filed a second motion to compel discovery. The same day, defendants filed motions to extend the discovery deadline and take the plaintiffs deposition. The magistrate set these motions for hearing on October 20, 2003. Plaintiff did not appear.
On October 21, 2003, the magistrate sustained defendants' second motion to compel and directed plaintiff to respond to defendants' written discovery requests no later than October 31, 2003. The magistrate also directed plaintiff to show cause in writing on or before October 29, 2003, why the Court should not assess costs and fees for failure to respond to defendants' discovery requests and motion to compel. The magistrate also cautioned plaintiff as follows:
The court assumes that plaintiff would prefer that this case proceed on its merits. However, if plaintiff continues on his current course of conduct, this case will not reach a resolution on the merits. Plaintiff is advised that the court will dismiss his action with prejudice if he continues to disobey this court's orders and the Federal Rules of Civil Procedure. Plaintiff is further advised that "dismissal with prejudice" means that this case will end, plaintiff will receive no recovery, and plaintiff will not be allowed to refile his claim in this court.Amended Order (Doc. #59) filed October 21, 2003. Plaintiff has not responded to defendants' written discovery requests or the magistrate's order to show cause. The imposition of sanctions appears both necessary and appropriate under Rule 37(b)(2) of the Federal Rules of Civil Procedure.
In considering the imposition of sanctions, the Court must consider on a case-by-case basis whether a party's failure was substantially justified or whether other circumstances make the imposition of sanctions inappropriate. Dismissal of an action with prejudice or its equivalent should be used as "a weapon of last, rather than first, resort."Meade v. Grubbs. 841 F.2d 1512, 1520 n. 6 (10th Cir. 1988). Dismissal is usually appropriate only where a lesser sanction would not serve the interest of justice; it is clearly a severe sanction and it is reserved for extreme circumstances. Courts should dismiss an action for failure to comply with orders only in situations which are the result of willfulness, bad faith or fault, rather than inability to comply.See M.E.N. Co. v. Control Fluidics. Inc., 834 F.2d 869, 872 (10th Cir. 1987) (quoting Nat'l Hockey League v. Metro. Hockey Club. Inc., 427 U.S. 639, 640 (1976)); see also Toma v. City of Weatherford. 846 F.2d 58, 60 (10th Cir. 1988). In this context, willful failure is intentional failure as distinguished from involuntary noncompliance.
Before dismissing an action with prejudice as a discovery sanction, the Court must consider the following factors:
(1) the degree of actual prejudice to the defendant;
(2) the amount of interference with the judicial process;
(3) the culpability of the litigant;
(4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and
(5) the efficacy of lesser sanctions.
Ehrenhaus v. Reynolds. 965 F.2d 916, 921 (10th Cir. 1992) (internal citations omitted). Defendants have incurred prejudice by plaintiffs failure to comply with their discovery requests and the Court orders. Defendants served their first discovery requests on June 20, 2003 — five months ago — and plaintiff has never responded. Accordingly, defendants have been unable to adequately prepare dispositive motions. A party's ability to prepare a meritorious motion for surnmary judgment, or to adequately prepare for trial, is significantly reduced when it does not receive sufficient responses to discovery requests. F.D.I.C. v. Renda. 126 F.R.D 70, 73 (D. Kan. 1989). Such delays are therefore prejudicial. Moreover, delay strategies significantly interfere with the judicial process.See Ehrenhaus. 965 F.2d at 921. Plaintiffs failure to comply with discovery orders has made it impossible for this case to proceed with any degree of order or to be resolved in a just, speedy and inexpensive manner.
In this case, plaintiff is pro se and the Court has specifically warned him, in simple terms, that his case could be dismissed for further failure to comply. Lesser sanctions have had no effect. Plaintiff has not paid the monetary sanctions which the Court imposed with respect to the inaction which led to the original motion to compel. In the circumstances, dismissal is a severe but appropriate sanction.
On November 20, 2003, plaintiff filed a Notice of Appeal (Doc. #70) and Motion To Transfer Counts to State Court (Doc. #71). Plaintiffs notice of appeal asks this Court to review two orders issued by the magistrate: (1) the Order (Doc. #56) filed October 14, 2003 which imposed sanctions of $150.00 for plaintiff's failure to comply with discovery orders and (2) the Order (Doc. #59) filed October 21, 2003 which extended the time for plaintiffs deposition. Under Fed.R.Civ.P. 72(a), a party must file objections to a magistrate's ruling on non-dispositive pre-trial matters within ten days. Plaintiff filed his objections well after the ten-day period ran, and this Court cannot review the magistrate's orders.
Plaintiffs notice of appeal also states that at the conclusion of the scheduling conference on June 26, 2003, he learned that the magistrate had worked for the same law firm as one of defendants' attorneys. Plaintiff suggests that the magistrate rulings have not been fair, and he questions the integrity of the magistrate.
To prevail on a motion to recuse a judge under 28 U.S.C. § 144, a litigant must file a timely and sufficient affidavit which establishes that the judge has a personal bias or prejudice. Greeny. Bransoa 108 F.3d 1296, 1305 (10th Cir. 1997). Similarly, to obtaind is qualification under 28 U.S.C. § 455, a movant must show that "a reasonable person, knowing all the circumstances, would harbor doubts about the judge's impartiality." Id. Plaintiff's suggestion to disqualify the magistrate judge is wholly insufficient to meet these legal standards. Plaintiff makes no showing that the magistrate is biased or prejudiced, and he shows no reasonable basis to doubt the magistrate's impartiality.
Finally, plaintiff's Motion To Transfer Counts to State Court (Doc. #71) asks the Court to transfer his state law claims to state court. Plaintiff filed this suit in federal court and has shown no basis for the Court to transfer a portion of the case to state court. He cannot refuse to cooperate in discovery and ignore the Court orders, then escape the consequences by transferring the state law claims to state court. Cf. Lanier v. Am. Bd. of Endodontics. 843 F.2d 901, 904 (6th Cir. 1988) (plaintiff waived right to remand case that had been removed to federal court where plaintiff undertook affirmative action in federal court).
IT IS THEREFORE ORDERED that Defendants' Motion To Dismiss For Failure To Cooperate In Discovery And Failure To Comply With Orders Of The Court And Suggestions In Support (Doc. #63) filed November 4, 2003 be and hereby is SUSTAINED. Plaintiffs claims are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that plaintiff's Notice of Appeal (Doc. #70) and plaintiff's Motion To Transfer Counts to State Court (Doc. #71), both filed November 20, 2003, be and hereby are OVERRULED. IT IS FURTHER ORDERED that on or before December 16, 2003, defendants file anaffidavit setting forth the attorney's fees and expenses caused by plaintiffs noncompliance with the orders of this Court.